ISHIKKA Pty Ltd (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered the case of ISHIKKA Pty Ltd, which sought to have a nomination approved. The applicant was a standard business sponsor who had nominated an occupation for a visa holder. The core of the dispute revolved around whether the applicant had met the requirements for the nomination, specifically concerning labour market testing.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of section 140GBA of the Migration Act 1958 (Cth) and associated regulations, which mandate labour market testing for certain nominations unless specific exemptions apply. The Tribunal was required to determine if the applicant had provided sufficient evidence of attempts to test the Australian labour market and demonstrate that no suitably qualified Australian citizen or permanent resident was readily available to fill the nominated position.

The Tribunal reasoned that section 140GBA requires a standard business sponsor to undertake labour market testing unless an exemption applies. It noted that the ANZSCO code for cooks, the nominated occupation, is level 3, rendering certain skill exemptions irrelevant. Crucially, the Tribunal found that no evidence had been provided to demonstrate that labour market testing had been undertaken, nor was there evidence to suggest that any exemptions, such as those related to international trade obligations or major disasters, were applicable. The Tribunal also referred to the evidentiary requirements for labour market testing, including details of advertising and recruitment efforts, and the need to consider redundancies. As no such evidence was presented, the Tribunal concluded that the applicant had failed to establish that they had met the labour market testing requirements.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination.